Nativist Delusions about Presidential Eligibility
July 7, 2014 Leave a comment
Mario Apuzzo, Esq. has commented on a post of mine at his blog: “The Constitution, the Rule of Law, and the “Natura…“:
“You keep telling us that place of birth is not relevant in defining a natural born citizen. Your position just makes no sense given what the Framers knew about how nations made their citizens or subjects.”
Well that’s a new angle you haven’t trotted out before. I suppose it is so superior to all others that it will certainly silence all doubts.
“Place of birth is a necessary factor of being a natural born citizen.”
No, what it is is a doctrinal belief, a faith, a quasi-nativist religion that substitutes American soil for American Principles. Those with no attachment to American principles of individual liberty and individual rights, and who have no children of their own, feel an affinity for the warmth of a conceptual inclusiveness rooted in being a part of a great motherland, a national community whose members are tied together not by the unalienable American rights of free citizens who are independent of government and self-governed, but by the common fact that they left their mother’s womb inside of U.S. borders, thereby stamping them forever as something special, something American born.
If they had been foreign born, they would consciously feel like outsiders, -not real members of the club, but having been native-born as permanent members, nothing must be allowed to diminish the importance of their inviolable membership. Defend it they must.
They are natural born citizens purely by chance, by the good fortune of life’s lottery, by the incidental place their mother happened to be located when they would no longer fit inside her womb. That makes them All-American! Patriotic sons of the Fourth of July! Salute the flag of native-birth because it determines their fundamental self-identity.
They are not just any old American, -they are eligible to be PRESIDENT of THE UNITED STATES! And those foreigner-Americans, including even the foreign-born children of Americans whose ancestors were Americans for ten generations, are inferior and excluded from that exclusive club of citizens who are allowed to be President. Gee, what could possibly be wrong with such a viewpoint?
“The Framers knew that many nations followed jus sanguinis (citizenship inherited from one’s parents) respecting children born of their citizens abroad. But they also knew that so many nations, including England, followed jus soli (citizenship acquired from one’s place of birth).”
Why if I didn’t know better, I’d say that that is a disguised appeal to authority, -an authority that they had rejected utterly. He wants to pretend that the British nationality doctrine and legal support of both law and judicial opinion was not a complete package; take it all or reject it all. He wants non-thinkers to think that one can just pick and choose which elements of their doctrine one might select a la carte while rejecting everything else.
There is no basis for doing that, with the exception of native-birth to immigrant couples being deemed a basis of granting the gift of citizenship to their U.S. born children under the assumption that just as the parents are permanent members of American society, so also will be their children, -raised to be Americans and not whisked off to a foreign homeland and raised as foreigners.
But such a gift of citizenship is only a gift, not a right, and has nothing at all to do with the inherited national membership of children of Americans.
Also, it is a conceptual failure of imagination to suppose that in nations that permit jus soli membership for children of immigrants, and jus sanguinis citizenship for children of citizens if born abroad, that jus sanguinis is not also the basis of citizenship when born of citizens within the borders of their nation.
The truth is that jus sanguinis membership is the natural right of their children born anywhere in the world, including their homeland! There is no basis whatsoever to argue that their citizenship is due to jus soli if born at home where most parents live (in their own country) rather than via inheritance, via Right of Blood, via descent, because there is no way on Earth to distinguish the source of their national membership. None. No law defines a principle of nationality.
One must go far back in time to a time before jus soli came into existence in Britain, and that was probably right before the Norman invasion of William the Conqueror in 1066-68. With two separate peoples and nations to integrate, the only basis on which to do so had to be birth within the new king’s realm instead of birth to Englishmen or to Frenchmen. Ancestry and blood divided the the two peoples, but a common place of birth, the new royal realm, gave them something in common, and thus the origin of common law native-birth membership.
Hence, they knew that children born in these jus soli nations who also became citizens of their parents’ nations through jus sanguinis were born [abroad] owing allegiance to two different nations which was destructive of allegiance to only one nation.
It is not accurate to say or imply that they became citizens via legally prescribed jus sanguinis because it operates naturally in the absence of any law. It is natural membership and does not depend on the existence of law nor government. But the subjectship ascribed to the foreign-born children of subjects was via common law at first and later via statutory law enacted by Parliament. It was national membership by the orders of man, not by the order of nature.
“were born owing allegiance to two different nations“. That is 100% pure conceptual crap. No one ever could put an explanation to such ivory tower blather. How does a newborn baby “owe” anything to anyone or anything? Minors owe nothing to anyone including their parents who brought them into this world, possibly to their regret, parent or child. But they are obligated to show respect for authority.
Only adults “owe” those dependent on them the fulfillment of their obligation toward them. In the arena of social and national defense and survival, young men owe their seniors and juniors a duty to perform the duties performed by those who came before them, which included defending the nation, including the gentler gender, from foreign threats or attack and worse.
But in addition to the “owing allegiance” error, he makes an equally absurd error in conflating the dual national relationships resulting from having parents from two different nations, with the dual-relationship that actually does not result from birth within foreign borders. Only if both parents, from two different nations, impart a national connection to two different nations does the idea of dual allegiance even have any ground to stand on.
Before the era of women’s suffrage, there was no such thing as a wife with a different nationality than her husband. She assumed his nationality via marriage, and, at certain times in American history, lost her own, resulting in only one family nationality and allegiance.
But where their child might be born was irrelevant to the national background that each of them brought to their parentage. That is quite different from a foreign nation automatically bestowing the gift of its citizenship to everyone born on its soil. Such national membership is a gift, not an enslavement, not an obligation. Neither the parents nor their baby have any obligation whatsoever toward the foreign nation that is magnanimous toward all of the native-born, -a policy grounded on the natural assumption that they will most likely grow up in the nation and become adult citizens like the rest of the native-born.
So talk of owing allegiance to two different nations due to foreign birth is pure la-la land talk. It has no connection to the real world when both parents are foreigners and are not permanent residents but retain residency in their own homeland.
For example, there simply is no way that the Framers would have allowed a child born in England to U.S. citizen parents and therefore an English natural born subject to be eligible to be President and Commander in Chief of the Military.
What that idea blindly fails to recognize is that the United States did not recognize the assignment of British nationality to American children. In the eyes of the Americans and their government, that subjectship was null and void. Dead on arrival. To understand just how absurd his argument is, one must be cognizant of the fact that in the founder’s era and for generations after, native-birth on British soil came with the assignment of subjectship for life with no option for expatriation by choice. “Once an Englishman, always an Englishman.” The king owned you while you had life.
That was anathema to the Americans. Their most fundamental national membership belief was that of the freedom to choose one’s nation of choice and not be chained to one nation or monarch for life. Without that unshakeable belief, there never would have been an American Revolution since it was grounded on it.
But perhaps even worse than that blindness is the total failure to grasp just who those Americans were who were having children abroad. They were the Thomas Jeffersons and John Adams and Ben Franklins and John Jays. The cream of American political society, -founders of the United States, and yet under his brain-dead scenario, such sons who were born abroad while their parents resided there for various reasons for various periods would be judged to be aliens, foreigners, mere naturalized citizens by the grace of congressional law, except an exception is made in the foreign-birth doctrine for children of Ambassadors but not for their American peers. And what is it based on? Nothing. A trifling fiction and pretense that the Ambassador’s house is on American soil.
That was the fictional crap doctrine that the British had to come up with to explain a huge flaw in their Matrix of phony rules to justify the substitution of jus soli for the natural transmission of membership via blood, or Right of Blood (jus sanguinis).
“And do not tell me about the Naturalization Act of 1790, for that act only gave to those foreign-born children the privileges and immunities enjoyed by natural born citizens which could not under the Constitution include the privilege of being eligible to be President.”
That is so wrong that it is literally stupefyingly wrong. Congress gave them nothing because it had and has no authority to give them anything, -especially that which they are born possessing by birthright as Americans.
Congress was given only one job when it came to nationality, and that was to make the different State naturalization statutes follow a uniform rule so the required period of residence was the same in all States, and the personal character qualifications were also uniform (white, and of good character). That was aimed at foreign men who desired to become American citizens, but had to extend for practical reasons to include mixed-nationality marriages, for which State laws also would have been non-uniform if they even existed.
But it would not and could not have extended to the children of Americans since they inherited their citizenship from their father as an unalienable natural right, -a right by blood relationship.
So why were they included in the naturalization act of 1790 and after? For two reasons. The first was to continue a rule of the British common law which forbade the foreign born children of foreign born subjects who never lived in their national homeland from being considered as citizens also. It said that the right of citizenship shall not descend to them. It did not say the “gift” of citizenship shall not be “bestowed” on them because that would have been a violation of the American natural principle that citizenship descends by right of birth from citizen parents.
But if the parents are natives of another nation, and the children as well, then there is no attachment to the grandfather’s nation any longer and such children are natural members of the nation of their birth and upbringing.
Mario states that the “act only gave to those foreign-born children the privileges and immunities enjoyed by natural born citizens”. But the act says not a word about giving anything. All it says is that they “shall be considered as natural born citizens.” And what exactly are the things that were supposedly given? Well… he’ll get back to you on that one… next century (since there were none other than presidential eligibility).
Two points: “considered as” means recognized as, which is equivalent to saying that your child, although not born in your home and on your property but born in another location (a hospital) shall be considered as being your natural child nevertheless. In a world where some might question that logic, it would need to be stated, and that was the situation following a century and a half of colonial British nationality doctrine which was in defiance of Natural Law.
People’s minds were pretty much permanently bent by a lifetime of exposure and even study of (by lawyers) the British legal system, -including nationality assignment. So that fairly obviously needed to be stated in a statute so those state officials who determined what names were allowed on their State ballots for presidential elections would be alerted that their old view of British doctrine controlling the national membership of American children was a thing of the past. Which brings us to the second point.
The other reason for mentioning Americans in a naturalization act was to guarantee their recognition as the natural born citizen that they were since it gave the founders in that first Congress a chance to remedy the lack of any mention of them in the Constitution and its eligibility clause. They wanted to make it clear that since they were born of Americans they thus were American by natural right and fully eligible to be President. Otherwise they would have labeled them the same as they labeled the children of naturalized citizen, namely as being simply citizens of the United States.
The power of the old belief was and is so strong that here we have Mario Apuzzo and other nativists still proclaiming it even to this day. And they are so married to it that no facts nor logic can convince them otherwise. It’s like a religion. You’ve got to be born on that sacred American soil or else you are naturally an alien in need of naturalization even if your father was the President and son of a President. How can reason penetrate such thinking?
“And do not tell me that the Framers did not consider themselves bound by the municipal laws of England which attached their jurisdiction over a child born in its territory.”
“The framers… bound by English laws??? What planet is he living on? They were bound by nothing! They set out to start from scratch and invent a whole new form of government, and it was not easy nor quick to accomplish. The only thing that they were bound by was what was reasonable, secure, balanced, fair, preserving of State sovereignty in all intra-State matters, and acceptable to all. British law was only one source of many to which they looked for ideas and reasonable and practical precedents. But they were “bound” by nothing, -as one might gather from the total lack of any evidence to the contrary. But I will “not tell” him that ’cause he knows otherwise.
“Hence, as you can plainly see, [what I “plainly see” is not what he wants me to “plainly see”] your no-place-of-birth theory of a natural born citizen simply does not make any sense given what the Framers knew about the international arena, the law of nations, and how nations through their municipal laws made their citizens or subjects.”
Nations have never “made their citizens and subjects” if they were persons born of citizens or subjects. They only “made” new national members via rules, customs and laws that dealt with those who had no natural right to be included in the civic society of a nation they had settled in, -of which they were not members but were in fact aliens.
“They simply would not have allowed a President and Commander of the Military of the United States who, while being a U.S. citizen, was also a natural-born subject of the King of England. How can you explain away the fact that the Framers simply would not have allowed such a scenario?”
The falsity of his view is seen in the ambiguity of that question. He pretends that the issue of where one was born is in fact identical to that of the parents to whom one was born. How is geography the same as blood relationships? He does not even hint that there are two ways to be born a subject of the British Crown; place-of-birth or British parentage (whether father or mother). The latter is highly relevant and disqualifying, while the former is highly irrelevant and insignificant.
He knows the difference backwards and forwards but pretends that he does not because that serves the purpose of obfuscation of the issue in order to pretend to be on the side of reason when he in fact has abandoned it in favor of false characterization.
“The same concern regarding children born out of the United States to U.S. citizen parents applied to children born in the United States to alien parents. If those children were made U.S. citizens by jus soli, they also would have been citizens or subjects of their parents’ nation. Hence, those children, too, would have been born owing allegiance to two different nations which was destructive of allegiance to only one nation.”
Superficially that seems to make sense, but again is predicated on a false assumption. Children are not “born owing allegiance” to anything or anyone. No duty will ever call to children and minors. Duty only calls to adults. So there is no conflict of allegiance for minors regardless of what rules, customs or law governments followed in assigning nationality.
That means that there was no dual allegiance conflict if the parents had no intention to ever become a permanent member of the foreign society in which they were living and having one or more children abroad. They would be returning to their homeland in due time and their children would then be integrated into the society of which they were born to be members.
And to repeat, Americans rejected British subjectship since it came with a life-long ball & chain. But natural born Americans who were loyalists and empire lovers had no intention to return to the liberated colonies and simply stayed permanently in England with their British born children. But such parents were not considered Americans even though born and raised in America as British subjects, thus neither were their children.
Also, the truth of natural citizenship is seen in the residency requirement for the Presidency. An American couple might have lived in Europe for over two decades, with a son born there, raised there, and schooled all of the way through college there, followed by emigration to America, his parents homeland and the land of his natural citizenship, and after 14 years of residency be qualified to seek the presidency at age 35 as was his natural right.
Mario will not address the issue of the American right of citizenship because citizenship by natural right destroys his well-constructed doctrinal house. Instead he must covertly take the position that Americans have no such right and all nationality is a gift of the government. Otherwise, if it is a right, then no soil and no borders can abrogate a natural right. It is an element of being an American. It is a feature of one’s sovereign right as a member of We, the People. Government has no say in the matter of the membership of the off-spring of its creators. They are its boss, not the other way around.
“The only conclusion to be drawn from this reality is that the Framers defined a natural born citizen as a child born in the United States to parents who were its citizens at the time of the child’s birth.”
The only conclusion to be drawn is that the Framers did not define a natural born citizen at all since those words were already defined by the English language, and not by the rejected British nationality doctrine. Attaching life-long significance to a mere fleeting event (birth) and the location where it transpired is the height of absurdity.
Just how absurd would be seen if a teleportation device were to be invented and foreigners could teleport into the United States, give birth, get a birth certificate (which is seen as evidence of U.S. citizenship), and teleport back to their foreign homeland with their “U.S. Citizen” baby.
“This was the child who was born with unity of citizenship and allegiance in the United States. It was only this child who was born without the possibility of foreign nations making claims to his or her allegiance through either jus soli or jus sanguinis.”
Mario, there is something that you don’t seem to understand. It is this: WE ARE AMERICANS! WE DON’T GIVE A DAMN ABOUT OTHER NATIONS’ ASININE “CLAIMS”! WE ARE SOVEREIGN! AND THAT INCLUDES OVER OUR OWN CHILDREN WHO ARE ALSO AMERICANS.
Mario returned to the ambiguity well for more of its water when he states “This was the child… but ends with “through either jus soli or jus sanguinis”. He fails to acknowledge the fact that jus sanguinis is only possible if both parents are of the same nationality, namely American. So how exactly would another nation “make claims” against a child of American citizens through jus sanguinis when neither parent is foreign??? And why the hell would we care even if they (North Korea?) did?
This was the only child that was born with sole allegiance to the United States. This was the child that the Framers saw becoming future Presidents and Commanders.
Well that almost makes me want to stand and salute! But let me ask a small hypothetical question from among who knows how many other possible such questions: what if an American child was born on a great British ocean liner (the Titanic, for instance) while the parents were returning from Europe. What is the natural nationality of their child? Is it British since it was born on a British ship as British law dictates, or dictated in the past? Is it British if born while still in British waters? Does either factor matter at all?
The child was not born on British soil, nor within British borders, nor on American soil, so what determines its “allegiance”? Answer: It has no allegiance except that which is inculcated through its upbringing by parents and teachers and social events. So how exactly can one claim that such a child does not have sole allegiance to the United States when it reaches maturity?
Clearly, what sounds great in theory and reads great on paper is not the same as what defines the real world. We have to take the world as it actually is, and not attempt to impose the ivory tower concepts of childless pundits onto it.
The issue is why would early Congress in its Naturalization Acts of 1790 and 1795 go from “shall be considered as natural born citizens” to “shall be considered as citizens of the United States.”
The answer is two-fold. That third Congress either did not know of the concerns of the first Congress regarding the presidential eligibility of foreign-born Americans, and so labeled their children together in the same sentence with children of naturalized citizens with the same general label for all citizens to protect them from being viewed as aliens, or there was more to it than that, much more.
Foreign-born American children not born of Ambassadors might be countable on the fingers of two hands, but the children of immigrants who were not yet naturalized when they were born would have numbered in the tens of thousands. And their later naturalized fathers would be American voters who would be most unhappy about defining foreign-born American children as the natural citizens that they are by right because that is unmistakable evidence that jus sanguinis was the federal rule for assigning national membership.
That would mean that natural born citizens are children of citizens, -and not children of aliens. And that would mean that all of those native-born patriotic American sons deemed citizens from birth by the State in which they were born, would not be recognized as eligible to be President ever in their lifetime. Born and raised and schooled in America as Americans, and possibly decorated war heroes, but having zero right to ever be V.P. or President. What a wet blanket on their American dream of being the American equivalent of a monarch. Gee, I wonder which group had a more sizable and energized voting constituency.
No doubt their influence was felt and so the language was changed to render it undefined regarding what sort of citizen the foreign born American children were. That way everyone could believe what they wanted to believe without any statute contradicting their belief. The Problem: Not solved, but only postponed, and still unresolved.
Second, the Constitution gives to Congress in citizenship matters only the power to make uniform the laws of naturalization. That power does not include the power to make anyone a natural born citizen through a naturalization statute.
Yikes! He’s strangling himself with his own words! The first sentence is in direct opposition to his often asserted position that Congress absolutely has great power over citizenship matters. But now he states what I’ve been harping on for years, that it had no such authority. But he pulls his punch by only addressing natural born citizens while he could have and should have included all citizens since new citizens were not made by any power of Congress but by the power of the oath of Allegiance & Renunciation administered by mostly State common law Courts of Record. Via the solemnity and sincerity of that oath a foreigner ceases to exist and is replaced by a new “natural” American citizen who has been made natural via natural-i-z-a-t-i-o-n.
Congress would not have taken its precious time and expended its limited resources to repeal the 1790 and make that specific change unless it meant to convey that the two phrases did not mean the same and that “citizens of the United States” at birth under the 1795 act were, indeed, not “natural born citizens.”
Wow! He goes from being entirely correct to being entirely wrong within the span of just two sentences. It could give a mind whiplash. He starts off desperate from the git-go with reference to “precious time and limited resources”. It’s almost laughable. “Limited resources”? What is the “cost” of dropping “natural born” and substituting “of the United States”? Why it must be enormous! And thus that supports his contention that paying such a “high cost” must mean something enormous as well. It must mean that Congress, by the power that it did not have, down-graded such American children for life by consigning them to the group that the children of aliens were consigned to before.
But even worse, he then throws sanity to the wind with the claim that natural born citizens are not “citizens of the United States”!!! Gee, are they citizens of some other country? So he not only has determined via his great clairvoyance that “natural born citizen” doesn’t mean what it implies but instead is a legal term of artifice carrying the definition of his which is not found anywhere in jus soli nor jus sanguinis, but in addition, now even “citizen of the United States” is also a legal term of artifice and does not mean what it says but is defined as excluding all natural born citizens!
What a twisted web of delusion he has wrapped himself in, -with no sane way out. It’s pathetic to see.
~some parting thoughts….
No child can inherit a national membership which its parents do not possess. Any citizen of the United States married to another U.S. citizen will pro-create a natural born citizen anywhere in the world via descent, -via a blood connection to American parents, -via natural inheritance of the parents’ national political character.
It is impossible for American couples to produce anything other than natural citizens of America. They, unlike foreigners, cannot produce mere legal citizens via U.S. statutes or legal opinions. Legal citizens can only be produced by the naturalization process and as the off-spring of a couple that includes a foreigner.
Neither means can produce a natural citizen by birth. But those born of American parents cannot ever be anything other that natural citizens by birth. From conception they have only one destination, and that is to be born as Americans.
They cannot, in the correct view of the government, be aliens by birth because that would require that the government owns both the parents and the process of national belonging, -with natural belonging banned as a recognized principle of national inclusion, national membership, national citizenship.
We are not ruled by such a government tyranny because We, the People, are the sovereigns in America, not the government. We have rights that cannot be abridged nor abrogated, and one of them is the natural right for the flesh of our flesh to be natural members of all groups to which we naturally belong, from our own family on up to and including our national group, our nation The United States.
by Adrien Nash July 2014 obama–nation.com